After spending nine months behind barbed wire at the INS Mira Loma Detention Center, fighting and praying for the right to stay in the United States, Hermogenes Canales was released this week in a rare victory for a legal immigrant convicted of a crime.
Tough U.S. immigration laws imposed by Congress in 1996 make it nearly impossible to have a deportation order reversed by a judge.
But in the case of Canales, 41, a native of El Salvador, his attorney managed to do it by getting Canales' original criminal conviction vacated.
Until Tuesday, Canales was among 14,500 "criminal aliens" being held in 15 makeshift prisons nationwide by the Immigration and Naturalization Service. Last year, the federal government detained 153,000 noncitizens and deported more than 55,000 who had committed crimes.
All have served their sentences--in some cases, years ago--but have spent months in federal custody without bail awaiting a decision on whether they would be deported.
Canales was convicted of statutory rape for having sex with a 16-year-old in 1987. He served his sentence of less than a year in jail and community service. He did not have another brush with the law until he was stopped at Los Angeles International Airport on April 1 as he returned from visiting his sick father in El Salvador.
Canales is not a U.S. citizen, but he is a legal, permanent resident. Under the 1996 law, noncitizens convicted of certain crimes known as aggravated felonies, including statutory rape, must be deported regardless of when they were committed.
Canales was ordered deported Aug. 3 by U.S. Immigration Judge Robert Vicar as his wife and daughter, both U.S. citizens, cried in a makeshift Lancaster courtroom. "We don't have nothing," his wife, Lillian, said that day. "It's like a little ant fighting with the elephant."
His lawyer, Vadim Yuzefpolsky, appealed the case, then turned to the only legal alternative still available: trying to get Canales' original conviction overturned or vacated in criminal court. More and more immigration attorneys are resorting to the strategy in the face of tougher immigration laws.
"There is nothing else, once they are convicted of an aggravated felony, except vacating the judgment," said Dan Korenberg, a partner with one of the largest immigration law firms in California.
